State, Islamic Law and Minorities in Indonesia

How did the State and civil society negotiate the Shari’a and the civil law in a modern pluralistic Indonesia? Why is it difficult for a compromise that pleases everyone? The State continues to function as the legitimate power to produce laws in which the Shari’a has to contribute and to adjust itself in a Muslim majority yet, pluralistic nation. The tensions and negotiations between various elements– the government and civil society, result from a long duree of encounters of the Middle East (including the Mediterranean), Europe, and Asia in the Indonesian archipelago. A history of a legal culture and interfaith interaction in a local context reveals the various and changing impact of global forces. Indonesia, being referred to as “the Umma below the winds”, or Jawi by people in Mecca, being part of Southeast Asia after World War II, is today described as the largest Muslim country in the world, although geographically and viewed religiously “peripheral” in relation to the Islamic center, the Middle East.However, Indonesia has been a crossroads of various religions and cultures originating from the Middle East, Asia, Africa, Europe, and more recently the United States. Connections and disconnections between continents prevail in this archipelago with more than 17,000 islands and 300 ethnic groups and 6 major religions. As for the Ottoman Empire, it was Acehnese who had the closest, albeit changing relations with the Ottoman, from the 16th century to the 19th century (for example, Aceh’s recognition of the Ottoman caliphate, asking for artillery technology, in exchange of pearls and diamonds, thus commercial, cultural, and religious interaction); Apart from being connected to India, exemplified by the kingdoms of Majapahit and Sriwijaya, the archipelago become gradually Islamized through Mecca and Medina, but more importantly via Egypt. The coming of the colonial powers (Portuguese, British, Dutch, and Japanese) had a lasting impact on the political, administrative, legal, and religious cultures of the population. During the late colonial time, in the early 20th century, world economy and print capitalism led to the emergence of socialist, nationalist, and Islamic organizations. Pan-Arabism, and pan-Islamism (caliphate) tried to penetrate into Indonesian market of ideas through the returning students and teachers and books, but they were not successful. Instead, localized, Java-based organizations were established–with Islam as the spirit and ethics rather than a trans-local political ideology.

The MUHAMMADIYAH was a modernist organization adopting and adapting Dutch educational and organizational system, including how to dress and what language to use in mosque sermons. THE NAHDLATUL ULAMA (the Awakening of the Islamic Scholars, NU) emerged as a response to that modernism, trying to conserve traditional ways of mission and education. Muslims under occupation asked the question as to the status of being subject to the infidel (kafir) rulers. Many reasoned by quoting medieval Sunni scholar Al-Ghazzali: “it is better to be under a just infidel than under an unjust believer.” They were certainly various responses to colonialism, but Muslims interpreted the Sha’ria not in a rigid way.

In 1928, the conference of the Nahdlatul Ulama in Java issued their fatwas in response to various questions concerning other religions and the practices deemed as foreign influences. One of the questions was: “What is the opinion of the NU regarding wearing trousers, ties, shoes, and hats?” The NU general conference replied in the following manner, which then became its fatwa: “If one wears these with the intention to imitate and to follow the path of the unbelievers (kafir) and to promote their unbelief, then the person becomes kafir. If he or she does not have an intention at all to imitate the kafir (simply wearing this or that) and to follow their path, then the act is not forbidden. Nevertheless, it is considered undesirable (makruh).” This shows how they construct which foreign ideas and symbols are okay and which are not okay.

The Independent Republic of Indonesia adopted and adapted centuries of such different types of influences in making laws. The governments and the people’s representatives continued to regulate difference based on various and changing identity communal markers, particularly ethnicity, class, and religion. Thus the law that has survived today is pluralistic, drawing from various sources, pre-colonial (generally called customary, ADAT), colonial, and Islamic (especially as pertaining to Muslims) as a result of a long history of interactions. With the end of the Caliphate system in 1924, Muslims and non-Muslim minorities endorsed the modern nation-state. The earliest debate was about whether or not ISLAM would become the Constitution. Thus, the controversy of the Jakarta Charter emerged about whether or not the Constitution includes the obligation of Muslims in following the Shari’a. In any case, Indonesians see law as both principle and mechanism to managing pluralism and ensuring order, but at the same time, law becomes a site of contentious discourse involving the governments and civil society. Law and order are closely intertwined, but disorder and sometimes violence have become related to legal discourse and struggle.

In the post-colonial time, Indonesian’s legal pluralism is manifested primarily in the eclectic procedures: The Roman Dutch colonial law (although the Dutch later subscribed to a French civil law), the oral law culture (ADAT, customary law), and Islam– primarily Sunni and Shafi’i. Because Islam or the Shari’a does not provide detailed legal procedures, the Dutch derived civil law has become the main source for such procedures. The Shari’a deals primarily with some domestic matters, such as marriage, divorce, and inheritance. Gradually the Shari’a minded Muslims seek to include more, including the Shari’a court (apart from the civil court), the zakat collection and distribution, pilgrimage management, and interest-free banking. More recently, decentralization– after 32 years of centralization, has lead some regencies to enact Islam-based laws, concerning dressing, gambling, drugs, and moral issues.

The Marriage Law of 1974, for example, is to be implemented for Muslims through the Islamic Court and for non-Muslims through the Civil Court. The Law states the minimum age of groom (19 years old) and of bride (16 years old). The Ministry of Religious Affairs register Muslims, and the Civil Registration Office non-Muslims. The principle is monogamy, but polygamy is not forbidden with agreement of previous wives or the court with some requirements (financial and just treatment). Divorce is by the court’s decision. The Law does not allow interfaith marriage, and this and others have become controversial. The debates on the formalization of Islamic law at the national and local levels, are a reflection of an ever increasing influences of global ideas, including with the Iranian revolution, the global movement of caliphate, global Islamic movement for anti-neo-imperialism and neo-liberalism, and more recently the global sentiments of anti-American colonialism in the Middle East. However, the manifestation of such global ideas remains within the local and national constraints.

In the autonomous province of ACEH, for example, due to its unique history, the central government allowed it to pursue the formalization of Islamic Law. They have regional law (Peraturan Daerah) dealing with various aspects of private and public lives of Muslims, excluding non-Muslims. There is the council of the Shari’a and morality police controlling people’s prayers, fasting, sexual relations, gambling, and the like. The codification of the local law (QANUN) dealing with the Islamic court (marriage, inheritance, endowment, charity, economic transactions) includes the kind of punishment of prison or fines (ta’zir, diyat, not directly based on the Qur’an and the Sunna). The Qanun stipulates that non-Muslims, although not subject to the Islamic law, shall respect the implementation of the Islamic Law in Aceh.. The Acehness local rules dealing with heresies, blasphemy, and apostasy (MURTAD) indicate the increased influence of the religious authority in controlling the faith of the people, in the hope of religious conservatism and social order, but without necessarily considering the rights of minorities and the Indonesian Constitution. For many Indonesians outside Aceh, the formalization of Islamic law is not necessarily an Islamic, nor designed on the basis of a pluralistic Pancasila. For many, it is a politization of religion for the sake of identity and power.

Indonesia has been also a site and marketplace of global Islamic Movements emphasizing Islamic struggle (JIHAD) or Islamic call (DA’WA), such as Hizbut Tahrir (of Indonesia) of Palestinian origin, and Jama’at Tabligh of Indian origin, Wahhabism of Saudi origin, to name the most popular one, albeit their numbers are relatively small but vocal. Among the so many political discourses in Indonesia, Darul Harb versus Darul Islam are today no longer used; Indonesia has been seen by many if not most Muslims as either Darul Islam or Darul al-Sulh (Abode of Peace). The classical and medieval concept of the Dhimmitude is revived by some, but the idea and application seems not clear and not realistic. There are some Islamic movements who see the Constitution of Medina as the model for a pluralistic, tolerant State, but the histories of Muhammad and Indonesian Muslims are different. Others point to Muslim Spain (Convivencia) when talking about coexistence of Muslims, Christians, and Jews, but the still unresolved Israeli-Palestinian conflicts overshadow the spirit of harmony, and instead often filled with tensions and prejudices.

Global and Islamic ideas and issues become localized, thanks to communication technology; and few Indonesians actually become involved in traveling to other countries. When they study or travel abroad, most tend to go home. However, despite the small number of Indonesian diasporas, Indonesian Muslims do not find any significant contradiction between Islamic solidarity (UMMA), national solidarity (WATAN), and international, humanistic solidarity (BASYAR). There is a movement toward nationalization of the Shari’a, which means different things to different peoples, but demonstrates how Islamization, globalization, and nationalism are perceived as not contradictory and instead reinforcing each other. In other words, broadly speaking, Indonesians experience multiple and multifaceted processes: Localization, Arabization, and Westernization.

The persistence of the State Ideology of the Pancasila and the 1945 Constitution until today show how world ideologies (monotheism, humanism, nationalism, democracy, and socialism) have their strengths and relevance to the nation building. The Constitution which guarantees religious freedom (but its definition and limits have been contested) provides Indonesians with basis for justifying their actions toward one another. In the courts, political speeches, scholarly statements, leaders and people try a balancing act: Indonesia being neither an Islamic state, nor a purely Western type secular state; but instead the State of Pancasila, which guarantees freedom of religion, but supports religious development of the population. According to the official statements, Indonesia is not a theocratic State in the sense that the State Constitution is not based upon or derives its source from a specific religious law. By the same token, it is not a secular state in the sense that the government is neutral toward the development and the prompting of religious life of the people. Indonesian State does not recognize communism and atheism. At the semi-governmental level, there are councils for religious leaders: Islamic, Protestant, Catholic, Hindu, Buddhist, and Confucian. The Council of Islamic Scholars, for example, have issued their Fatwas concerning “minorities”, fatwas which are not legally binding but are often heard by many. For example, the Council issued fatwas condemning religious pluralism, liberalism, and secularism in their definition (pluralism is to believe all religions are equal, liberalism is to use reason over revelation, and secularism is to separate the worldly from the religious).

They also condemned the Ahmadiyya of Qadiani (India) as heretical and the tensions and violence against its followers erupted in different parts of Indonesia. Contemporary Indonesia have witnessed various Interfaith Debates: Religious Mission (Christianization versus Islamization), the place of Chinese Minorities, Marriage Law (inter-religious marriage), National Education Law (religious education in public schools), Joint Celebration of Christmas, and the building of religious houses. The most recent rejection by the Constitution Court of some liberal groups to revoking the Blasphemy Law of 1965, banning a religious interpretation that is not in accordance with the mainstream, a complex story in itself, reveals how the majority mentality (fearing religious difference to cause social disorder) still prevails. Religious interpretations are subject to Law, but the Law that ensures a sense of security (based on perceived or real threats posed by far and near enemies). Different responses by other Muslims and non-Muslims toward the formalization of Islamic Law and the Blasphemy Law have emerged: Some say, Indonesia is not an Arab country (thus, tensions between outright Arabization versus Indonesianization); other say the formalization of the Islamic law is against the secular Pancasila and religious freedom guaranteed by the 1945 Constitution; still others argue that the Qur’an has no details about the kind of governance and that what is crucial is the substance and spirit– such as the objectives of protecting faith, reason, spirit, family, and property. Others suggest that the categorization of Muslims as majority and others as minority do not do justice to diversity among the majority themselves– such as in the cases of Muslims criticizing the formalization of Islamic law in Aceh and in parts of Indonesia, and the preservation of the Blasphemy Law this year.

In conclusion, the negotiation of the Shari’a and civil law in Indonesia is linked to multiple, long and short forces and processes, allowing tensions and coexistence of identities and cultures. The State’s management of difference cannot be well understood without investigating the strengths and limits of global and local ideas and networks in particular local contexts. What the Indonesian case can contribute to our world history perspective of encounters is that with the collapse of the Ottoman caliphate, and after world war II, religion and nationalism, or Islam and citizenship, interacted with tensions and integration depending on socio-political agency and contexts, in ways that Prophet Muhammad himself and Muslim caliphs never anticipated.

(This paper was presented at a panel “Confessional Communities and Legal Cultures in the Mediterranean and Beyond”, the World History Conference, University of California Riverside, 14-15 May, 2010)

Ieder ding onder de hemel heeft zijn tijd (Prediker 3:1b)

In harmony with the great vision of our national founding fathers, we reaffirm that the Pancasila is the purata kencana, the middle way to maintaining the socio-cultural and political bond of the diverse people of Indonesia

Scholars of any kind of knowledge exist in the world to role as guiding stars for the people to lead them all to a brighter future life. If this moral calling of all scholars sends them to death, like the fate of Socrates in the 4 c. BCE, they still must bear their own cross earnestly. The compassion living within and radiating from the heart of any scholar is the compassion rooting in the divine cosmos and knowing no limit.(Ioanes Rakhmat)